Standing Committee E

[Mr. Peter Atkinson in the Chair]

Health and Social Care (Community Health and Standards) Bill

Peter Atkinson: A considerable number of Government amendments will be moved formally this morning, so I should be grateful for the Committee's forbearance, although I hope that we will not get too muddled.Clause 44 Reviews of data

Clause 44 - Reviews of data

Paul Burstow: I beg to move amendment No. 396, in
clause 44, page 15, line 32, leave out from 'publish' to end of line 33 and add 'a report'.

Peter Atkinson: With this it will be convenient to discuss amendment No. 402, in
clause 53, page 19, line 16, leave out from 'publish' to end, and insert 'a report'.

Paul Burstow: This group of amendments seeks clarification from the Minister and the Government about their intentions under clause 44. The explanatory notes state:
''This clause enables the CHAI to review the quality of any data collected by others on health care provided by the NHS or for bodies and to make a report or publish a summary of its findings.''
 However, clause 44 seems to suggest that the commission has the discretion to publish if it wishes rather than be under an obligation to publish. Our amendment seeks to delete the words in clause 44(2) after ''publish'' to the end and to insert the words ''a report''. That would make it clear in the Bill that a report should be published. 
 Will the Minister clarify the Government's intention in the matter and say whether the amendment is acceptable or give us an assurance that a report will, in all normal circumstances, be published?

David Lammy: It is the Government's intention that CHAI should publish reports that deal with the needs of its audience, and that means that in a particular case a summary of its findings will be published. For example, were CHAI to perform a large-scale technical evaluation of a hospital trust's data set, a great deal of complicated material would be generated that may need to be summarised. Indeed, because of the long time over which the data are gathered they may be of little public relevance. In drafting the subsection in this manner, we are giving CHAI the flexibility to target its intended audience effectively in order that it can determine how best to disseminate its findings; we also wish to give it the discretion to make a determination on the audience for its report. The requirement is for CHAI to publish a
 report, and the purpose of the subsection is to allow it to make that assessment.

Paul Burstow: My hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris), gives his apologies for not being here this morning. Having read the summary, I am sure that he would wish to see the technical detail from which the summary was drawn in order to satisfy himself that it was an adequate representation of the full results. I share that desire. Will the Minister clarify whether the detail that led to the summary would also be available on request?

David Lammy: The hon. Gentleman will know that CHAI is an independent body and that clause 44 allows it the discretion to determine its audience. I hope the hon. Gentleman will agree that in the performance of the Commission for Health Improvement and the manner in which it disseminates its reports there have been no suggestions that it is not willing to provide those lengthy reports in detail to the hon. Gentleman or to his colleagues. We want CHAI to operate in a transparent way, and I am sure that I can give an undertaking today that it will supply information on request.
 I acknowledge the good intentions behind the proposal, but I hope that the hon. Gentleman will understand our intention and will consent to withdraw the amendment.

Paul Burstow: This exchange has been useful in illuminating the intention behind the clause. As a result of the Minister's assurance, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 44 ordered to stand part of the Bill. 
 Amendment made: No. 275, 
That Clause 44 be transferred to the end of line 14 on page 20.—[Mr. Hutton.]

Clause 45 - Information and advice

Amendments made: No. 276, in 
clause 45, page 15, line 37, leave out 'which is provided'.
 No. 277, in 
clause 45, page 16, line 3, leave out subsection (3) and insert— 
 '(3) The regulator and the CHAI must cooperate with each other in the exercise of their respective functions under Part 1 and this Chapter.'.—[Mr. Hutton.]
 Clause 45, as amended, ordered to stand part of the Bill. 
 Amendment made: No. 278, 
That Clause 45 be transferred to the end of line 14 on page 20.—[Mr. Hutton.]

Peter Atkinson: The question is that clauses 46, 47 and 48, which we have already debated, stand part of the Bill.

Simon Burns: On a point of order, Mr. Atkinson. I thought that the purpose of the Government's amendments was to leave out these clauses, not for them to stand part of the Bill.

Peter Atkinson: They must be dealt with formally. We intend to deal with them by moving that they stand part of the Bill. If the Government are sensible they will say that they should not.
 Clauses 46 to 48 disagreed to.

Clause 49 - Introductory

Amendments made: No. 282, in 
clause 49, page 17, line 22, after first 'the', insert 'general'.
 No. 283, in 
clause 49, page 17, line 23, leave out 
 'other than NHS foundation trusts'.—[Mr. Lammy.]

David Lammy: I beg to move amendment No. 284, in
clause 49, page 17, line 24, after 'under', insert 'subsection (1) and'.

Peter Atkinson: With this it will be convenient to discuss the following: Amendment No. 413, in
clause 49, page 17, line 27, at end insert— 
 '(bb) the availability and quality of information for patients about the health care;'.
 Government amendment No. 285. 
 Amendment No. 374, in 
clause 49, page 17, line 30, at end insert— 
 '(dd) the need to safeguard and promote the rights and welfare of vulnerable adults;'.
 Amendment No. 398, in 
clause 49, page 17, line 32, leave out 'purpose of paragraph (d)', and insert 
 'purposes of paragraphs (d) and (dd)'.
 Amendment No. 165, in 
clause 49, page 17, leave out line 31.
 Government amendment No. 286. 
 Amendment No. 166, in 
clause 49, page 17, line 34, at end add— 
 '(f) the clinically appropriate prioritisation of healthcare interventions;'.
 Amendment No. 377, in 
clause 49, page 17, line 34, at end add— 
 '(f) the need to ensure that the NHS fully discharges its legal obligations under the National Health Service Act 1977 to provide continuing healthcare.'.
 Amendment No. 167, in 
clause 49, page 17, line 34, at end add— 
 '(g) the delivery of healthcare in line with correct ethical practice.'.
 Amendment No. 375, in 
clause 100, page 40, line 9, at end insert 
 'and the need to safeguard and promote the rights and welfare of vulnerable adults.'.

David Lammy: I will deal first with the Opposition amendments. The Government amendments are largely technical, and I shall return to them.
 The Opposition amendments propose to add substantially to clause 49 by seeking to extend the matters that CHAI will have to consider when carrying out some of its functions. I remind the Committee that CHAI is there to deal with the 
 availability of and access to health care; the quality and effectiveness of health care; the need to safeguard and promote the rights and welfare of children; the economy and efficiency of provision; and the effectiveness of measures taken for the purposes of the body in question and any other person who provides health care for that body. 
 Amendments Nos. 166 and 167 would effectively require CHAI to consider whether doctors made the right decisions in their treatment of patients and whether their decisions were ethically correct. Amendment No. 166 would require CHAI to consider whether clinical priorities determine health care interventions. I hope that Opposition Members know that clinical priorities are a matter for clinicians to determine; it is not the role of an inspectorate to second-guess clinical decisions. 
 CHAI will, however, be interested in the outcomes of clinical decisions, and we expect that in undertaking its functions under this chapter it will want to work with clinicians. That, in turn, will influence its review and investigation methods and other criteria. 
 Amendment No. 167 will result in CHAI examining the application of ethically correct practice, which is fundamentally a matter for the General Medical Council, the medical royal colleges and other professional associations. I am sure that CHAI will work closely with them in carrying out this and other functions. 
 Moreover, I am certain that, had the Government proposed the amendment, several Opposition Members would—quite rightly—have been up in arms. The medical profession has since Hippocrates had a tradition of self-regulation, and that must be right. There have been, unfortunately, a few notable exceptions such as Harold Shipman and Beverley Allitt, but by and large that self-regulation has been exercised very well. I am sure that GMC hearings are going on as we speak. 
 If CHAI becomes aware of or suspects something amiss with the behaviour of NHS professionals, it will report that to the appropriate body, which can investigate further. Clause 126(2)(g) explicitly provides for CHAI to disclose information to another body for the purpose of its statutory function, including bodies such as the GMC. To the extent that amendments Nos. 166 and 167 concern the broader issue of the quality of health care, they are already covered by subsection (2)(b). The amendments are, therefore, unnecessary. 
 Amendments Nos. 374 and 375, and No. 165—a consequential amendment—respectively propose to extend the list of factors to be taken into account by CHAI in clause 49 and to extend in clause 100 the duty placed on CHAI in the discharge of its functions, under the Care Standards Act 2000, to have particular regard to the need to safeguard and promote the rights and welfare of vulnerable adults. 
 I have some sympathy with those proposals, but we must draw a line somewhere in listing patient groups to which CHAI should pay particular attention. That was, to some extent, debated in Committee last week, and I do not want to revisit the arguments. We have, 
 therefore, chosen to continue to ensure that the most vulnerable group in society, which is identified in the Care Standards Act as children, is effectively covered. However, singling children out for particular attention does not mean that CHAI will not have the rights and welfare of other vulnerable groups in its sights. CHAI will be expected to focus on them as well. 
 Amendment No. 377 seeks to place a duty on CHAI to ensure that the NHS fully discharges its legal function of providing continuing health care under the National Health Service Act 1977, but the Secretary of State can already issue directions to NHS bodies on how they exercise their health service function with a view to ensuring that they provide appropriate health care for patients. 
 Furthermore, it seems that Opposition Members have failed to grasp the significance of the duty of quality introduced by the Health Act 1999. As a consequence of that duty and its replacement in clause 40, which we debated last week, NHS bodies are under obligation to put, and keep, in place arrangements to monitor and improve the quality of the health care that they provide. Under clause 53(2), CHAI already has the function of reviewing the arrangements made by NHS bodies to discharge that duty of quality. 
 Government amendment No. 284 is, effectively, a technical amendment, which makes it clear that the factors with which CHAI is to be concerned under clause 49(2) apply to its function under clause 49(1) of encouraging improvement. 
 Last Thursday, I made it clear that we would consult parliamentary counsel with a view to tabling an amendment on Report to ensure more generally that the factor is taken into account in the exercise of functions other than those in clause 49(1) and clauses 50 to 54. 
 It is also our intention that CHAI, as the inspectorate of health care, should focus on health care. It is right that CHAI's primary focus should be on how economically, efficiently and effectively NHS care is provided. That does not mean that CHAI's resources should be diverted to examining NHS accounts: that is clearly a matter for the Audit Commission. The Audit Commission identifies clearly the examination of accounts and other management functions as an audit consideration outside the value for money exercise. 
 Amendment No. 285, therefore, is a technical one that seeks to clarify that position by removing financial and other management functions from the primary focus of clause 49. Of course, it does not mean that CHAI will be unable to consider those matters if they impact on the quality of patient care. 
 Finally, amendment No. 286 is simply a drafting amendment proposed by parliamentary counsel. On further advice from counsel, we have decided not to proceed with it.

Paul Burstow: I am grateful to the Under-Secretary for outlining the purpose of the Government amendments, and for hearing in advance the Government's response to my amendments.
 I have served on several Committees, and it is interesting to listen to the reasons that are often given by Ministers in rebuttal of amendments. Although, on occasion, specific reasons are given for an amendment's being unacceptable to the Government—perhaps even an issue of principle—several tactics are employed quite frequently. There is the list defence, where too many items on a list make it overly burdensome, so Bills should not contain long lists. There is the technically defective defence, where a Member has drafted an amendment in such a way that it is technically impossible to include it in the Bill. There is also the defence that an amendment is unnecessary because it is already covered. The Under-Secretary cited that defence in response to amendments that my hon. Friends and I wanted to move. He said that they were dealt with largely under quality provisions elsewhere in the Bill. 
 A new innovation in the Committee is the flexibility defence, where it would be inappropriate to have anything further in the Bill because that would in some way fetter CHAI's discretion to discharge its purpose without too much encumbrance from this place. 
 I am sure that hon. Gentlemen have noticed other defences. However, those are the four that seem to be used most often as part of the art of dealing with Opposition Members' amendments. 
 The group of amendments that I want to deal with in this larger group of amendments concerns vulnerable adults and the question of continuing NHS health care. I will speak briefly on amendments that concern clinically appropriate interventions and ethical practice, which the Under-Secretary also addressed. However, as the Under-Secretary said, we spent considerable time last Thursday addressing clinical efficacy and the role of clinicians in health care. I do not, therefore, propose to go into great detail on those matters today. 
 However, with regard to amendments Nos. 374, 375 and 398, which deal with vulnerable adults, I want to reiterate simply Liberal Democrat's concern. It is entirely right for the Government—whom we supported during the passing of the Care Standards Act 2000—to have alighted upon the requirement to give specific statutory recognition to the need to safeguard and promote the welfare of children, but when we are talking about vulnerable adults who lack capacity, it is essential that we give a similar statutory basis to safeguarding and promoting their rights and welfare. 
 That omission from the legislation continues to trouble me and many other people from the regulatory and voluntary sectors. There are serious concerns about the extent to which the writ of human rights legislation in this country runs with regard to our care system. The regulator can cross the threshold of a care home, but the application of the Human Rights Act 1998 does not provide for that—unless there is a specific stipulation in the contractual arrangements between the local authority and the care home. I and others are concerned that the legislation does not apply in those instances. We will return to those concerns in future meetings. Before you call me to 
 order, Mr. Chairman, that is part of the concern felt for vulnerable adults. 
 I want to probe the Government on amendment No. 377, which addresses a long-running concern of mine about the scandal of the NHS's discharge of its responsibilities to provide and fund continuing health care. In responding to amendment No. 377, the Minister seemed to speak about directly provided or directly commissioned health care by the NHS. 
 Through amendment No. 377, however, I aimed to address the ongoing legal responsibility of the NHS to fund the continuing health care needs of older people and those in other care settings, such as nursing and residential homes. This issue was recently the subject of a critical report to Parliament by the health service ombudsman, and it goes back to the foundation of the NHS. How the line is drawn between health and social care responsibilities is a concern. Today's debate is not about whether the Government should fund personal care; it is about whether the Government should continue to fund health care. The concern about definitions, and whether continuing care is being funded, is one that CHAI should be empowered and required to examine. 
 In 1957, a similar concern led the Department of Health to issue guidance, setting out the responsibilities of hospital authorities. The guidance is fairly old, but it pertains to what I want to go on to say. Those responsibilities included: 
''Care of the chronic bedfast who may need little or no medical treatment, but who do require prolonged nursing care over months or years; convalescent care of older sick people who have completed active treatment but who are not yet ready for discharge to their own homes or to welfare homes; care of the senile, confused or disturbed patients who are, owing to their mental condition, unfit to live in a normal community life in a welfare home.''
 That guidance was issued in 1957, but since then legislation has not changed—the legal basis upon which the Department of Health tells the NHS how to discharge its continuing care responsibilities is the same. There have been no amendments to primary legislation or any ministerial statements. The Minster referred to directions, but there have not been any directions since that guidance in 1957, and there have been no announcements curtailing entitlement to NHS continuing care. 
 What has happened is that a succession of Governments have acquiesced and connived in the erosion of the fundamental right to have access to health care on the basis of need rather than means. That has been achieved by stealth and neglect. Periodically, that erosion has been checked through reports by the ombudsman and, significantly, through the courts—the most recent occasion being a few years ago. The ombudsman and the courts provided occasional hiccups in the erosion of the right to continuing health care, but successive Governments have issued guidance that has contributed to confusing and eroding the responsibility of the NHS. Successive Secretaries of State have signalled that the NHS should focus primarily on acute care. 
 The health service ombudsman's report revealed that guidance issued in 1995 was ''misapplied'' by health authorities. The ombudsman found little evidence that the Department of Health took any positive action to require health authorities to redraft their continuing care policies. Indeed, looking at the evidence, it appears that, if anything, health authorities were encouraged not to be proactive. At best, they were encouraged to take their own legal advice on these matters. There was no direct guidance from the Department of Health, no attempt to ensure that there was consistency and no attempt to ensure that the law was being complied with properly. 
 The findings from the health service ombudsman followed a 1999 Court of Appeal judgement, known as the Coughlan case. The Court of Appeal found that entitlement to NHS continuing care rose not only when a patient's health care needs were complex—that is all too often the language used in Government guidance—but when they were substantial. Interim guidance was issued by the Department soon after that court case, in July 1999, which did little more than say that this was a holding position and told health authorities to expect more guidance later in the year. In fact, it took two years to get that guidance from the Department of Health, and when it was published in 2001, it was not subject to consultation. 
 This is part of the context in which amendment No. 377 comes into play, because it is about trying to understand and to ensure that the NHS is adhering properly to the legal position as established in the Coughlan case, and not just relying, in its entirety, on guidance issued by the Department. That guidance was a travesty. It suggested that the Coughlan judgement merely confirmed the status quo. To be charitable, it might be fair to say that if one constructed that as being the status quo, established when the NHS was set up, that is what the Coughlan judgment did: merely affirmed the status quo. However, the construction that most people placed on the notion that the Coughlan judgment defended the status quo was that the previous guidance was okay and that there was no problem with the guidance that had been published. 
 The truth is that the Court of Appeal only narrowly avoided finding the 1995 guidance unlawful. It considered it to be idiosyncratic and flawed by virtue of its significant shortcomings. What circulars do not contain are clear statements that just because a person does not qualify for in-patient treatment does not mean that the person concerned should not be the responsibility of the NHS. 
 The judgment called for a reappraisal. Amendment No. 377 calls for a reappraisal of what the NHS is doing to discharge its continuing care responsibilities. [Interruption.] The Minister of State seems to be a little agitated by my remarks.

Peter Atkinson: Order. There is a slight problem. The hon. Gentleman is addressing the NHS's obligation, but amendment No. 377 refers simply to CHAI.

Paul Burstow: I seek to explain why CHAI must have this responsibility. In having this responsibility, it
 needs to understand the context in which amendment No. 377 is being moved and why it is necessary. It is necessary because, through a succession of guidance, the NHS's responsibility for continuing NHS care funding has been obscured. As we know from the ombudsman's report that was published this year, a consequence of that is that there are many cases throughout the country of people who should have been entitled, under the Coughlan judgment in 1999, to their funding being met fully by the NHS, but were not.
 There is now a hiatus in the Department of Health while it awaits the outcome of an analysis. It has asked every strategic health authority to ascertain how many people since 1996 have been treated unfairly and have had to use their own means to pay for their health care. That analysis should have been concluded by 28 March. Since that date, the Department has refused to publish the information.

Peter Atkinson: Order. Amendment No. 377 and clause 49 relate to CHAI. The hon. Gentleman is going extremely wide of both.

Paul Burstow: I apologise, Mr. Atkinson, if I am doing that. I shall endeavour to come back to order.
 The amendment, therefore, seeks to give CHAI the responsibility to examine this area, to ensure that the health service is discharging its legal responsibility properly and not leaving older people to pay for health care, which is currently the situation in all too many cases. 
 I hope that the Under-Secretary, in responding to those concerns, will tell the Committee whether there are plans to issue further guidance to the health service and to the Commission for Healthcare Audit and Inspection, because the current process is far from transparent and far from being open to scrutiny by Members of Parliament. Consequently, that has led me to conclude that the only way to ensure fairness for older people in accessing their rights to continuing health care is to have a specific power in the Bill to allow CHAI to follow that issue. 
 The issue is a long-running concern of many, and I hope that the Under-Secretary's comments can give some cause for comfort that—after many years of eroding that responsibility—this Department of Health under this Administration will take its responsibilities for continuing care seriously and give the commission the power to ensure that the entire NHS does so as well.

Simon Burns: I want briefly to mention amendment No. 166. Clause 49 gives CHAI the function to encourage improvement in the provision of health care. Subsection (2) lists several issues that must be considered in seeking to exercise those functions. Amendment No. 166 seeks to add to that list of considerations
''the clinically appropriate prioritisation of healthcare interventions.''
 I listened carefully to the Minister's introductory comments. He rightly pointed out that the duty is on doctors, as medical practitioners, to prioritise treatment on clinical need. That is a fact. However, 
 the Government's obsession with targets and waiting lists has become a problem in recent years, and that gives validity to the amendment and the duty that it places on CHAI. Clinical decisions and prioritisation in non-emergency treatment have been distorted so that trusts and health authorities have in the past been able to meet the Government targets. 
 Because of the politicisation of numbers in the health service, the Government have, since 1997, seen the meeting of targets as a benchmark in trying to keep their promises, especially on waiting numbers. That has led to a distortion of clinical priorities, not through any willingness of doctors and consultants but because of the system and the determination of the management of trusts to ensure that they do not fall foul of waiting list numbers and the inexorable pressure placed upon them to reduce those numbers. That is why it is important that CHAI be given the responsibility in the Bill to ensure that doctors are free to carry out their professional duties in a way that they want and which is free from political pressures. 
 In discussing amendment No. 377, I certainly have no intention of being out of order. All I shall say is that although I have sympathy with the Under-Secretary, I am not convinced that it is absolutely necessary to have such a proposal in the Bill. The amendment does, however, raise the problem of having to wait to find out what is happening as a result of court judgments. 
 To strengthen the case that the amendment is unnecessary, will the Minister share with the Committee any information that he may have on the results of the strategic health authorities' investigations and reviews into how many cases there are of problems with continuing care as a result of the court judgment? We would find that very useful, because I suspect that several hon. Members have constituents who have written to them asking whether they come within the ambit of this ruling due to some confusion by the local health trusts and authorities that have failed to understand the guidance and rulings from Whitehall. If he were able to give us information about progress so far, it might help to allay my fears and those of other hon. Members who may find amendment No. 377 superficially attractive but possibly unnecessary.

Andrew Murrison: Amendment No. 166 seems to be perfectly reasonable. The difficulty arises in determining what is clinically appropriate. In general, we can say that a coronary artery bypass graft is probably of higher priority than a varicose vein operation. However, life is much more complex than that, and most medical procedures lie somewhere in the middle. Prioritising in the way that the hon. Member for Sutton and Cheam (Mr. Burstow) appears to be suggesting would be far more problematic, and I doubt whether amendment No. 166 would be of great help in ascribing priorities that would do away with the distortion of health care that has occurred under this Administration and its obsession with waiting lists.
 We have a mechanism for ascribing some type of priority and rationing—we are reluctant to use the word rationing, but that is effectively what it is—and that is the National Institute for Clinical Excellence. It sets out clear guidance about what it thinks is appropriate and increasingly does so on a vast range of treatments; perhaps the best-known example is beta interferon. 
 I was interested to receive information recently from an organisation called the Medical Technology Group, which is exercised by the fact that the health service seems preoccupied with pills and potions rather than with devices and procedures. It has a point, and it is very concerned that, for example, cardiac stents are recommended for use in certain circumstances and that that advice has not percolated down to the front line. It is concerned that there in nothing in the Bill that puts an onus on the various inspection mechanisms to ensure that the advice that NICE gives gets to the front line and that what happens at the front line is not being audited against that advice. Perhaps a provision in the Bill to emphasise the importance of auditing against the advice given by NICE would solve some of the difficulties that the hon. Gentleman rightly raised. 
 In amendment No. 167 the hon. Gentleman refers to 
''the delivery of health care in line with correct ethical practice.''
 What does he understand by the converse? What would comprise incorrect ethical practice? I am trying to get over the tautology that he has introduced, and I suggest that the word ''correct'' be deleted.

David Lammy: As regards amendments Nos. 374 and 375 and the definition of vulnerable adults, the Care Standards Act 2000 does not define vulnerable children. The role of a children's rights director is specific to children who are living away from home, for example in children's homes and boarding schools.
 It recognises that children are particularly vulnerable. Part of the problem of defining vulnerable adults is the lack of a consistent definition of a vulnerable adult. There is a definition in the Care Standards Act, which is about the services that people receive and which covers all services for adults registered under that Act. However, there are other definitions, such as that in the Police Act 1997, which covers persons in receipt of a particular service who suffer from particular disabilities. 
 The hon. Member for Sutton and Cheam does not say what he would do for vulnerable adults who lack capacity. Many younger adults fear being included in a definition that does not take account of their wish to have an independent lifestyle. He knows that there are disabled adults who do not like the suggestion that they are somehow vulnerable because of their disability. I chose to raise those important issues previously and I hope that they answered the hon. Gentleman's points. 
 On amendment No. 377, it must be for the Secretary of State to judge what levels of care the Government have a duty to fund under the 1977 Act, 
 subject to rulings from the courts. That cannot be left to CHAI. The hon. Gentleman knows that he is choosing to pass the responsibility from the Secretary of State to CHAI because he takes a certain political position on the issue, and that cannot be right. 
 The Coughlan judgment required NHS bodies to reassess their guidance to ensure that it complied with the law, as one would expect. CSCI will be concerned with the continuing health care needs of people in nursing homes, and CHAI will work with the CSCI. There is a duty of co-operation under clause 116 to ensure that the inspectorates review all aspects of care. 
 I come now to amendment No. 166. The previous Conservative Administration introduced the first waiting time target of 18 months, and they would not have accepted that targets distorted clinical priorities then. Their 2001 manifesto included targets on maximum waiting times—they gave that undertaking to the electorate. Why was it okay to have targets then, but not now? I suspect that it is because there is a bandwagon concerned with ensuring that the Government focus on a range of targets; some on capacity and capability, others on the public's concerns and on clinical priorities. I do not accept the spurious arguments that were made about amendment No. 166.

Simon Burns: Will the Minister answer my questions? If he had listened carefully to what I said, he would have known that I was talking about waiting list numbers.

David Lammy: If the hon. Gentleman had been listening, he would have heard me say that there is a range of targets. He suggested that there were problems with targets for waiting times and waiting list numbers. It is right that the Government have such targets, as they have other targets. That makes amendment No. 166 redundant, and the hon. Gentleman knows it. I had hoped that we could do away with the political point scoring.

Paul Burstow: I listened carefully to the Under-Secretary and I am now picking up on another defence—the definition defence—which is that either the proposal is not defined at all in current legislation or that the definition would have unintended consequences.
 If the Department had an intention or desire to legislate in this regard, a definition would be forthcoming. There are definitions in place. That there are a variety of definitions of the term ''vulnerable adults'' is not in itself a reason not to seek to have a definition in this part of the Bill. That is the case not least because when it comes to the issue of personal care, for example, there are several definitions that operate in different pieces of legislation. Indeed, in previous debates on that very issue in other Committees, Ministers were entirely relaxed about the multiplicity of definitions: it did not seem to be a problem. 
 The question of passing responsibility from the Secretary of State to CHAI, which is the argument that the Minister advanced for not accepting my amendment regarding continuing care, misses the point that was picked up on by the hon. Member for 
 West Chelmsford (Mr. Burns). He rightly put his finger on a concern that I suspect that hon. Members on both sides of the Committee have. As a result of the coverage of the health service ombudsman's report that was published earlier this year, constituents are contacting us to ask whether they or their relatives fall on the right side of the line and whether they are entitled to free funding of their health care and all their accommodation costs in the nursing home or, in some cases, the residential care home in which, as a result of their circumstances, they find themselves. 
 As hon. Members, we are not equipped to give that answer. However, the concern is that that answer would vary across the country. In some parts of the country people have to be at death's door before they are entitled to continuing health care funding. In other areas, the rules are more generous. 
 At the moment, we have an NHS with stipulated statutory entitlements that are not being followed faithfully through by all health authorities in a consistent way, and a Department of Health that does not seem at all bothered by that and that does not seem to wish to inquire too closely into what is being done in the Government's name around the country. 
 Having listened to what the Minister has had to say about the amendments, it is an issue to which those of us on these Benches will wish to return. I am not certain that it would aid the progress of the Committee today to push the amendment to a vote, because I am not certain that Ministers are really listening to the anxiety that many people have about this issue. 
 On the issue of the proper use of the word ''correct'', which the hon. Member for Westbury (Dr. Murrison) raised, I take his point entirely and in future drafting I will draw that to the attention of my hon. Friend the Member for Oxford, West and Abingdon. I will ensure that we do not make such grammatical mistakes again, which can lead to the construction that the hon. Gentleman placed on that amendment. 
 We are not minded to press any of the amendments to a vote today. However, we will probably wish to return to some of these issues at a later stage. 
 Amendment agreed to.

Peter Atkinson: Did the Minister say that he did not wish to move Government amendment No. 286?

David Lammy: Yes.
 Amendment made: No. 285, in 
clause 49, page 17, line 28, leave out paragraph (c) and insert— 
 '(c) the economy and efficiency of the provision of the health care;'.—[Mr. Lammy.]
 Clause 49, as amended, ordered to stand part of the Bill.

Clause 50 - National performance data

Paul Burstow: I beg to move amendment No. 417, in
clause 50, page 17, line 36, leave out 
 'has the function of publishing' 
 and insert 'must publish'.

Peter Atkinson: With this it will be convenient to discuss the following amendments: No. 418, in
clause 50, page 17, line 37, at end add— 
 '(2) For the purposes of this section data relating to the provision of health care shall include all data relating to performance by NHS bodies. 
 (3) The Secretary of State may by order exclude certain categories of data relating to the performance of English NHS bodies and crossborder SHAs from the responsibility of the CHAI under subsection (1) on the grounds that publication of such data would prejudice the efficiency of the NHS. 
 (4) Any power of the Secretary of State to make an order under subsection (3) shall be exercisable by statutory instrument. 
 (5) A statutory instrument containing an order under this section shall (unless a draft of the statutory instrument has been approved by a resolution of each House of Parliament) be subject to annulment in pursuance of a resolution of either House of Parliament. 
 (6) The National Assembly may by subordinate legislation, made by statutory instrument, exclude certain categories of data relating to the performance of Welsh NHS bodies from the responsibility of the CHAI under subsection (1) on the grounds that publication of such data would prejudice the efficiency of the NHS.'.
 No. 479, in 
clause 50, page 17, line 37, at end add— 
 '(2) For the purposes of this section data relating to the provision of health care shall include all data relating to performance by NHS bodies. 
 (3) If the Secretary of State or the Assembly wishes to exclude certain categories of data relating to the performance of NHS bodies from the responsibility of the CHAI on the grounds that publication of such data would prejudice the efficiency of the NHS, then it must lay regulations before Parliament setting out what data it proposes to exclude, and the specific reasons for doing so.'.

Paul Burstow: These amendments deal with the issue of data and the way in which data are published and reported on by CHAI. The amendments are intended to seek further clarification from the Government on their thinking and on the purpose of the clause.
 I hope that the Under-Secretary will be able to elaborate further about the way in which it is intended that CHAI will publish these reports. In the previous debate, the Under-Secretary said that CHAI would be empowered to make decisions about when it would publish material in an abbreviated or summarised form. Amendment No. 418 seeks to go further and clarify whether the Government intend that particular categories of data, relating to the performance of NHS bodies, especially cross-border SHAs, will be published, and I look forward to hearing what they intend to do in respect of amendment No. 418.

Chris Grayling: Amendment No. 418 in the name of the hon. Member for Oxford, West and Abingdon would permit the Secretary of State to exclude certain categories of data, relating to the performance of English NHS bodies and cross-border SHAs, from the responsibility of CHAI, under subsection (1), on the grounds that publication of such data would prejudice the efficiency of the NHS.
 Clearly, these probing amendments have been tabled to extract from the Under-Secretary clear information about performance data. He said earlier that he did not believe that it was the responsibility of 
 CHAI to measure the quality of treatment, and I will return to that in the debate on the next two clauses. 
 Will the Under-Secretary clarify whether he expects national performance data from CHAI to reflect the quality and outcomes of health care, as well as the provision and nature of the processes that take place in the NHS? It is fundamentally important that in all the data and measurement of action that take place in the NHS trusts, there is a significant swing of the pendulum away from the process towards quality. We have already debated that, but I want clarification from the Under-Secretary on how far the Government will go in permitting CHAI to assess the quality and outcomes of health care and whether the NHS actually makes people better.

Andrew Murrison: The Audit Commission recently published several authoritative reports about data collection in the NHS, and I would be interested to know to what extent the Minister, when drawing up this part of the Bill, has taken them into account. Does he agree that Government bodies need to be consistent on whether they publish data? The Audit Commission, which presumably will have an ongoing interest in what goes on in the NHS and could very well carry out investigations requiring data in the future, must operate to the same guidelines as CHAI. It would be unfortunate if CHAI were required to publish its data in one way and the Audit Commission in another way, especially as they might sometimes be assessing more or less the same thing. I hope that the Under-Secretary will attempt—so far as possible—to ensure that those two bodies behave in the same way.

David Lammy: The amendments make a complicated provision that appears to require CHAI to publish all performance data available in the NHS, but allows the Secretary of State, or the National Assembly for Wales, to exclude certain data by statutory instrument if they think that collecting it would prejudice the efficiency of the NHS. Finally, they provide for either House to annul that instrument. In a sense, that broadly contradicts the arguments of the hon. Member for Sutton and Cheam and his hon. Friend the Member for Oxford, West and Abingdon about the independence of the new inspectorate. We provided for CHAI to publish the performance data but we have not attempted to restrict what that data should or should not cover. The Opposition amendment is thus contradictory in trying to tie CHAI's hands and to burden it with the requirement to publish all performance data. That, frankly, is cumbersome, overly bureaucratic and risks increasing the burden on the NHS.
 Much performance data is collected at the moment and published locally by the NHS. To require CHAI to collect and publish that data again is a waste of resources, and the NHS can do without that. That relates to the point that was just raised. We want inspectorates to work together across the board to reduce the burdens on bureaucracy. That is why we included that requirement in the Bill. As the hon. Gentleman knows, that was also the aim of the Cabinet Office report, ''Making a Difference: 
 Reducing Burdens in Hospitals''. That work continues. 
 My hon. Friend the Member for Ealing North has sought to rectify some of the drafting defects of his own and other amendments, but the difficulty remains. If those amendments were carried, they would distract CHAI from its primary focus of assessing and reporting on the performance of the NHS. 
 To answer the point raised by the hon. Member for Epsom and Newell (Chris Grayling), CHAI has a function to publish data. It decides what to include and takes account of all the factors in clause 49(2). He knows that CHAI will publish further performance data later this year. Having looked at the range of indicators, the hon. Gentleman knows that there is, for example, data for acute and specialist trusts on a clinical focus relating to deaths within 30 days of heart bypass operations; emergency readmission to hospital following discharge; and thrombolysis treatment time. Those are clinical indicators against which acute and specialist trusts must, at present, indicate their performance. Alongside those are patient-focused indicators such as better hospital food, day case booking, cancelled operations and so forth. 
 The hon. Gentleman, therefore, knows that CHAI currently asks our acute and specialist trusts to collect data for a broad range of indicators, and that will undoubtedly continue. First and foremost, however, what to include must be up to CHAI, and I do not intend to prescribe that now. Furthermore, the Audit Commission may continue to publish data on financial management but it will not carry out comparative studies on the economy, efficiency and effectiveness of English bodies. 
 I hope that the hon. Member for Sutton and Cheam will withdraw those amendments.

Paul Burstow: I have listened carefully to the Under-Secretary. The hon. Gentleman's point about independence was certainly well made, and I take it on board. In the context of earlier debates, it is an important issue. As the hon. Member for Epsom and Ewell said rightly, the amendments seek further clarification of the Government's intentions. Certainly, we are not in the business of asking CHAI to duplicate its activities or the activities of others.
 Having listened to the Under-Secretary and to his reassurances, I beg to ask leave to withdraw the amendments.

Simon Burns: I am a little confused about this group of amendments. Is it right that the hon. Member for Sutton and Cheam seeks to withdraw amendments Nos. 417 and 418? I should have liked to hear an explanation of amendment No. 479, which is selected in that group.
 There is no reference, explanation or discussion of how amendment No. 479 seeks to improve the Bill.

Peter Atkinson: I am not sure whether the hon. Gentleman was making a speech, an intervention or a point of order.

Simon Burns: I think I was doing all three.

Peter Atkinson: I allowed the hon. Gentleman to speak after the hon. Member for Sutton and Cheam had asked leave to withdraw the amendment. Technically, therefore, the amendment cannot be withdrawn and we must vote against it.
 Amendment negatived. 
 Amendment made: No. 173, in 
clause 50, page 17, line 37, leave out 
 'other than NHS foundation trusts'.—[Mr. Lammy.]
 Clause 50, as amended, ordered to stand part of the Bill.

Clause 51 - Annual reviews

Amendment made: No. 287, in 
clause 51, page 18, line 1, leave out 
 'other than an NHS foundation trust'.—[Mr. Lammy.]

Chris Grayling: I beg to move amendment No. 527, in
clause 51, page 18, leave out line 3.

Peter Atkinson: With this it will be convenient to discuss amendment No. 399, in
clause 51, page 18, line 3, leave out 'must' and insert 'may'.

Chris Grayling: Clause 51 makes the most difference today to how our hospitals are managed as CHAI must award performance rating to each NHS body.
 We dealt briefly last week with the application of performance ratings to NHS foundation trusts. However, the pursuit of star ratings has become a driving part of the life of most trusts' chief executives. Their success or failure to meet the criteria can change perceptions of the performance of their trusts in a way that can often be grotesquely unfair. 
 Last week, I referred to the work of Dr. Foster, whose research organisation looked into the performance of NHS star ratings—the performance rating targets referred to in subsection (1). That research stated loud and clear that the ratings do not reflect the quality of clinical treatments of a particular hospital. We judge a hospital on whether it make us better, delivers high-quality treatment and puts on the road to recovery patients whose lives are in danger. Those issues are not reflected in the star-rating system, which is, instead, geared too much towards process. The obsession with the star-rating system is the seed from which the target culture has grown. 
 That is the root of the evil, and the amendment seeks to apply some hefty weedkiller to that root. The star-rating system is simply not working. We want the Government to return to the drawing board and come up with something better. 
 As is evident from amendment No. 31, we want the Government to give CHAI the job of coming up with something better. [Interruption.] We do not want the Bill to create a system of political control. The Minister of State may cough and splutter, but when we debate amendment No. 31, we will see that the Bill retains loud and clear the phrase: 
''approved by the Secretary of State.''
 Ultimately, it will be a system controlled by the political masters of the NHS and not by those who, in our view, have the expertise to judge whether a hospital trust is performing. 
 The figures, statistics and information base on which the star-rating system is founded are fundamentally flawed. I want to go through a few examples to show why Ministers must rethink the whole set-up. I shall start with a few excerpts from the Audit Commission report that was published last week. Interestingly, a clear pattern emerges upon consideration of the performance figures for different NHS trusts over the past couple of years. That pattern is not uncommon in many large organisations where people have targets to meet. 
 It is custom and practise in many commercial organisations for the sales department to book as many sales as possible in the last couple of months of the financial year to try to meet its annual target. It does not reflect the actual state of the business; it represents a last-minute attempt to impress the managerial masters. That is happening in the NHS, as NHS managers struggle, for obvious reasons, during the later days before an assessment is to be made to ensure that their hospitals are as close as possible to reaching their targets. 
 I pick out an intriguing excerpt from the Audit Commission report about waiting times for outpatient appointments. On page 11in the performance section of the report entitled ''Achieving the NHS plan'' report, it states: 
''Half-way through the first year of the Plan (2001/02), auditors rated nearly two-thirds of trusts as being at high risk of missing the first milestone, which was to reduce the maximum wait to 6 months (26 weeks). Yet, after the end of that year, the DH [Department of Health] was able to report that in fact almost all acute trusts had met the target.''
 That was said to be the result of ''determined and imaginative effort''. However, the small print states: 
''Although undoubted progress has been made, the exact situation cannot be stated with certainty because of recently revealed inaccuracies in some trusts' waiting list information. The Audit Commission, with the Agreement of the DH [Department of Health] and CHI, has reviewed data quality within acute trusts. We found that nearly all trusts had some data-system weaknesses that increased the risk of errors. For example, a typical error was an incorrect date used for the start of waiting times—too many mistakes here could render statistics about whether waiting times are being achieved unreliable.''
 I had a direct experience of how waiting time statistics—the core part of the performance ratings mentioned on page 18, line 13 of the report—were being helpfully adjusted. A constituent came to see me because she was baffled by the experience of her waiting time. She received a questionnaire from the hospital where she was due to receive treatment. To ensure that the dates for her treatment did not clash with another appointment, the questionnaire asked when she would be on holiday. That is an enlightened approach to patient care: a wise and sensible thing to do. The woman was pleased and returned the questionnaire detailing the weeks when she would not be available. That was tremendous. 
 However, that well-intentioned process had a sting in the tail. The woman received a further letter from the trust saying that since she was unable to attend for treatment during those four weeks, her waiting time had been extended. Her treatment had to be carried out within 12 months, but that period was extended by an additional four weeks. A 12-month waiting time for her operation became a 13-month waiting time, which relieved the pressure in the system. However, that in no way represents a truthful or accurate reflection of genuine waiting times in that hospital. It was a manoeuvre by the hospital to give it a little more leeway to say that it had met its targets.

Stephen McCabe: The hon. Gentleman puts a sinister interpretation on the matter. Does he seriously suggest that if someone is unavailable for treatment that should not be taken into account? What kind of honesty and integrity would be in any figures that he produced if facts were not taken into account? If someone is not available, they are not available. Is that not a straightforward fact?

Chris Grayling: The hon. Gentleman is a little naïve in his understanding of the interpretation of such a situation. It is quite clearly a device used by hospitals to allow an extra month in waiting times. To ask someone when they are on holiday and to add two weeks to the maximum waiting time that is permitted under current rules to give themselves a little more leeway hardly seems to be—

Adrian Bailey: The hon. Gentleman just said that two weeks were added; earlier he said a month. Will he clarify whether it was a month or two weeks?

Chris Grayling: I apologise to the hon. Gentleman. The example that I gave was four weeks. That person was told originally that she would be treated by August 2003. After the questionnaire was dispatched she was told that, because of her non-availability for part of that time, she would be suspended from the waiting list and her treatment would be guaranteed by the end of September 2003.

Simon Burns: Does my hon. Friend know whether the questionnaire that was sent to his constituent warned that if she was away it might jeopardise the maximum time that she would have to wait for treatment? Does he agree that if such a warning were not in the questionnaire, it would have been fair to include it so that the constituent could have made other arrangements for her holiday to ensure that that did not happen?

Peter Atkinson: Order. Before the hon. Gentleman answers that question, I should like him to bear in mind that we are moving to his example from the amendment that we were debating.

Chris Grayling: I shall wrap up that section of the discussion briefly by saying that I read the questionnaire, and it gave no indication whatever that it was anything other than a helpful contribution to the patient rather than an attempt to manipulate the waiting list, which it clearly was.
 I made the point about chasing statistics in the latter part of an assessment period—whether it is a financial year or a period that the Government have selected to measure a particular target—and the fact that the NHS scrambles to meet such targets. It was interesting to listen yesterday to the figures given by my own SHA, which provided substantial evidence of that and certainly called into question the validity of figures in a specific period; not their accuracy, rather the justification that drops in waiting times represent drops in long-term trends. They are, therefore, a true reflection of hospital performance that can be used to assess performance rating.

Adrian Bailey: We have listened to details of how waiting times criteria have been manipulated. I am not sure whether the hon. Gentleman used that word, but it is a fair summary of what he is trying to say. However, it is open to dispute. Does he disagree in principle with performance ratings and waiting times? Does he believe that the previous Tory Government made a mistake by introducing maximum waiting times?

Chris Grayling: I have no recollection that the previous Conservative Government introduced maximum waiting times.

John Hutton: Of course they did. They introduced maximum waiting times of 18 months. The hon. Member for West Chelmsford did it.

Chris Grayling: My hon. Friend the Member for West Chelmsford referred to our party's 2001 election policy to introduce a maximum waiting time. My answer is that targets in themselves, depending on what they are, are not automatically wrong. However; drowning the system in the wrong targets—measuring the wrong factors rather than the quality of care or whether the NHS actually makes people better—and using targets to create headlines, which Ministers are wont to do, are not good ways to manage health care in the UK.

Simon Burns: Does my hon. Friend agree that the number of people waiting and the Government's political targets lead to clinical distortions? The view abroad is that it is easier to have an ingrown toenail dealt with than a more serious operation so that the Government's political targets of numbers are not breached.

Peter Atkinson: Order. I remind the Committee that we are debating the awarding of performance ratings and not waiting times. As we have now had our fun, I should be grateful if we got back to that issue.

Chris Grayling: The point that Labour Members are missing, and it is to their discredit that they continue to do so, is that this summer, the NHS—

Adrian Bailey: Will the hon. Member give way?

Chris Grayling: I will in a moment. This summer, the NHS will publish another set of star ratings. Those ratings will not correlate with a hospital's ability to treat patients well but will, in many cases, bear a relationship to its ability to do a good or bad job of managing the statistics that it must deliver to the Government. That is no way to run a health service.

Adrian Bailey: Will the hon. Gentleman make it clear whether he objects in principle? I asked that question in my previous intervention, but he did not answer it.

Gary Streeter: He answered it.

Adrian Bailey: With respect, I do not think that he did. If he does object, what alternatives would he consider?

Chris Grayling: In principle, I do not object to judging the quality of care in the health service, nor do my right hon. Friends. Our argument is that the system is all about process and is not about quality of care. That is where it is letting us down, and that is why we tabled the amendment. How is the Minister going to change the current system? What powers will he give to CHAI? Will he cut CHAI free, with a remit to create a system that will work properly? Will he continue to insist on retaining ultimate political control in Whitehall of systems that create a distorted and unrepresentative system of star ratings, which damage hospitals that are otherwise doing a decent job?

Jon Owen Jones: The hon. Gentleman is in danger of confusing the Committee and himself with his logic. He said that targets are about process and not outcomes. They are not; they are about outcomes. They may not be the right targets, but they measure outcomes, not process.

Chris Grayling: The hon. Gentleman does not know what is going on in the health service today. Two weeks ago, I talked to a consultant who manages an outpatient clinic. He said that he frequently has patients who, on examination, are much more seriously ill than they realise, and he seeks to admit them to hospital because they are in immediate clinical need. However, to ensure that the hospital can meet the below four-hour waiting time target, he has to telephone the accident and emergency department to ensure that there is nobody there who has been waiting for more than four hours and, therefore, needs to be admitted first. That is happening in spite of the fact that the consultant's patient has a priority for a bed and for treatment, and it is the type of clinical distortion that is happening day after day and week after week in the NHS. It is wrong.
 I have examined performance data from the Surrey and Sussex region, and the figures are striking. They reinforce unequivocally my judgment that NHS managers have been forced to scramble around to meet targets as deadlines approach, and that those targets and the NHS figures do not reflect a long-term trend in improvement, as the Government argues. I can give the Under-Secretary some examples. Total inpatient and day case waiting lists in the region fell last year. I give Ministers credit for some improvement in the NHS across the area, but it is not commensurate with the amount of resources going in. 
 Some 50 per cent. of the improvement came in the last month, which is a coincidence. Inconceivably, the figures for outpatient waiting times rose. Between April 2002 and August 2002, the number of patients waiting for an unacceptable time in the accident and emergency departments of hospitals in the Surrey and Sussex area doubled and remained static until 
 February and March 2003 when they suddenly halved again. That is a mighty reduction. 
 Last week, during Health Questions, the Under-Secretary defended the four-hour waits in accident and emergency departments. Through the year, the average number of people waiting in accident and emergency departments for four hours floated between 79 and 80 per cent. In the first week of this year, the average was 79.1 per cent. In the second week it was 79.7 per cent. In week five it rose to 82 per cent. and in week 11 it fell to 79.3 per cent. Suddenly, in week 13—Ministers will know all about week 13 because that was the week in which they told hospitals that they would collect the data—the total rose magically from 80.2 per cent. in the previous week to 88.4 per cent. in the key week. That is an amazing coincidence; in the week when the data was to be collected, there was a sudden 10 per cent. increase in the overall total. 
 That is no more an accident than the sharp drops at the end of the financial year are accidents. Those figures represent managers scrambling around to find data that will ensure that they do not lose one or two stars in the star ratings. 
 A trust in the constituency of my hon. Friend the Member for Worthing, West (Mr. Peter Bottomley) did not do as good a job as other trusts in fiddling the figures. It did not move extra staff into the accident and emergency department for that week or hire extra agency staff. Ironically, that trust will end up losing out in the star ratings system even though it had one of the best performance figures in the area for the whole year. That is the kind of distortion that exists in the star rating system.

Gary Streeter: My hon. Friend is making an important point and a powerful case. Some hospitals are open and brazen about stocking up for the week in which they know they will be measured; they are quite open when questioned by people such as myself. As soon as that week has passed, they downsize by laying people off or redeploying staff, and the service goes back to how it was. That is no way to run a health service. My hon. Friend is absolutely right that it totally distorts the clinical excellence that hospitals should be putting first. [Interruption.]

Chris Grayling: I agree totally with my hon. Friend, and the fact that the Committee is hearing snorts of derision from Government Members during this discussion suggests that they are out of touch with the realities of the national health service. [Interruption.] There are the snorts of derision again. May I invite the Under-Secretary to come with me and talk to consultants in the national health service who will tell him a very different story from the one that he obviously heard through the official channels?

Adrian Bailey: I was interested in the hon. Gentleman's use of the phrase ''fiddling figures''. Considering that he quoted a particular hospital in that context, it is a reasonable deduction that he is accusing that hospital of fiddling its figures. Has the hon. Gentleman contacted the hospital to get an explanation of those changes, and would he like to communicate his
 accusations to it? He should at least give the hospital some opportunity to respond.

Chris Grayling: The hon. Gentleman clearly was not listening to me. Since he wants a specific example, I will provide one that is on the record. In this instance, I pay a rare compliment to the NHS Modernisation Agency, which in my view costs too much money and adds to, rather than subtracts from, NHS bureaucracy. However, for a considerable time the East Surrey hospital declared publicly that it had cracked the twelve-hour trolley wait situation in its accident and emergency department. It said that it was no longer an issue for patients.
 Interestingly, the NHS Modernisation Agency went to the hospital, tapped on someone's shoulder and said that it did not think that the hospital had cracked the problem. The agency said that the hospital was changing its means of definition and that what it had done did not reflect the fact that patients were staying on trolleys for twelve hours. In weeks one, two and three of this year, the hospital did not have a single trolley wait of twelve hours or more. However, in week four, after the agency's visit, the hospital had 104. That suggests some creativity on the part of the hospital.

Andrew Murrison: Is my hon. Friend aware that one or two hospitals up and down the country have solved the problem of trolley waits by removing the wheels from the trolleys, meaning that they are no longer trolleys, but beds?

Chris Grayling: Indeed. My hon. Friend the Member for Westbury may remember the interesting written answer that I received from the Department, which said that, in official statistics, a bed can be a trolley, a couch or anything flat that one can lie on. There are many ways of making the figures tell a story that is slightly different from reality.
 I am concerned, however, about the end product of that situation in the star rating system, because whether a hospital gets three stars, two stars, one star or none will, in many ways, affect a whole range of its activities. Will it be able to recruit good new staff, and will it be able to hold on to its best staff? We debated earlier whether a hospital would have the right to be a foundation hospital. In reality, the star rating system—the performance rating system set out in line 3 of page 18 of the Bill—is a crucial part of determining many aspects of the work of a hospital and whether it can succeed or fail. Today, that system is flawed. 
 Let me give a specific example of the way in which that system is flawed. I will briefly read to the Committee three of the case studies of hospital trusts, set out in the appendices to the Audit Commission's report. Case study six concerns a hospital trust needing radical improvement. It states: 
''This Acute Trust has performed poorly in relation to NHS Plan targets, and the auditor noted significant financial management failings, without identifying any substantial signs of imminent improvement.''
 That does not sound particularly good, does it, Mr. Atkinson? Let us move on to case study five, which concerns a poorly performing acute trust, but one which is showing signs of improving managerially. The comment is: 
''This Acute Trust performed poorly in relation to NHS Plan targets, and was rated as poor managerially, including high staff sickness and turnover rates. A 'data quality' check revealed inaccuracies in waiting list information and waiting times in A&E.'' That is not great. Finally, case study two concerns a succeeding hospital trust. It states: 
 ''This Specialist Acute Trust achieved most NHS Plan targets, and was rated as 'very good' on the majority of measures of financial and performance management.''
 What do you think those three trusts have in common, Mr. Atkinson? Well, in case study five, the poorly performing acute trust was awarded two stars by the Department of Health. In case study six, the hospital trust that needed radical improvement was awarded two stars by the Department of Health. In the final case, the succeeding hospital trust was awarded two stars by the Department of Health. That is proof, if proof were needed, that the current star system does not work, that it does not reflect truly the achievement and success of a hospital and that it ought to be written out of the Bill and taken back to the drawing board.

Adrian Bailey: What would be the hon. Gentleman's targets for the NHS, given that he wants these targets removed?

Chris Grayling: I would like CHAI to be given responsibility for publishing the information, set aside from political interference and control and from the political objectives of a Government who need to be able to issue quarterly press releases on progress. I want CHAI to be able to publish information about the quality of health care that is provided by a hospital, and whether that hospital makes people better. When we do not publish a detailed set of Government-driven figures that distort critical care across our health service system, I will be happy.

Paul Burstow: We have quite a lot of sympathy with the main thrust of the argument that the hon. Member for Epsom and Ewell has advanced. The Committee has already debated who should set the standards, and we have decided that it should be the Government. This clause makes it clear that it is necessary to have regard for those standards when defining criteria. We will debate a clause later in the Bill that will make it clear that the commission must have regard to specific Government policy.
 Mechanisms are in place in this part of the Bill to ensure that the commission, in producing the criteria used to determine performance, is already hemmed in by a framework so that it does not act on a whim. The framework will attempt to ensure that the commission's work is related to the direction of the Government's policy aims and goals for the NHS. 
 That being the case, why is it also necessary for the Secretary of State to stipulate that there must be a performance rating system? Our amendment seeks to remove the word ''must'' and insert the word ''may'' to 
 allow some flexibility in this aspect of the commission's activities. 
 I feel strongly that this ought to be a matter for discretion, for several reasons. The first reason comes back to our debate last Tuesday about how independent the commission should be. This clause is the stumbling block to the true independence of the commission. The commission is not independent; it is very much an instrument of Government that will be used to pursue the Government's agenda. The Secretary of State approves the criteria that are used for setting and measuring performance standards. 
 The Audit Commission Act 1998 contains similar provisions for standards and performance, which are set out in section 44. The Secretary of State does not have a similar responsibility; he does not approve those standards. It is for the Audit Commission to decide what system is appropriate for requiring relevant bodies to publish information on their activities in any financial year. 
 There is a clear requirement for bodies to publish such information annually, so that comparative information is available for the bodies that the Audit Commission is responsible for auditing. In that case, those bodies were still the NHS and local authorities. It is not an unreasonable requirement to place on the Commission for Healthcare, Audit and Inspection. However, it is unreasonable to place that requirement on the commission, and then on top of that to stipulate that the whole business must be determined, or at least approved, by the Secretary of State.

Peter Atkinson: Order. I caution the hon. Gentleman that he is in danger of moving on to the next group of amendments. Amendment No. 31 refers to the Secretary of State. We are concentrating on performance rating.

Paul Burstow: I am very conscious of that. I am about to move on to a specific example of how the star rating system works, as it is currently conceived and as I assume it would be interpreted by the Bill. It would be useful to hear whether my understanding was correct.
 The hon. Member for Epsom and Ewell will be familiar with the Epsom and St. Helier NHS Trust, in which both he and I have a constituency interest. There are two examples of where the performance rating system is questionable. In August 2001, the Commission for Health Improvement published a critical report on the performance of that hospital. Since then, the trust has undertaken a range of measures to address those concerns. That is important—[Interruption.] I should be grateful if the Minister of State allowed me to finish my thread before he attempts to add to it. 
 At that point, it had been intended to give that hospital one star. The star rating had been decided, but had not yet been published. Because of the timing of such things, when the commission's report was subsequently issued and the star ratings published, the hospital received a zero star rating for that year. That is the first example of the inter-reaction between the commission's inspection role in publishing a specific report about a trust and, with regard to this clause, 
 publishing its performance rating. That is what happened with that trust under the current system.

Chris Grayling: The hon. Gentleman will be aware that the Commission for Health Improvement said that the Epsom and St. Helier NHS Trust suffered from a number of significant management failings. One of the reasons for the subsequent improvement is the introduction of one or two key people at the top of that trust who have done a good job. Nevertheless, the trust still has problems. Does the hon. Gentleman agree that the star rating did not reflect in any way the dedication and commitment of the medical staff at both hospitals, whose work was completely ignored by the system?

Paul Burstow: I entirely agree. The difficulty for the new management team that came in after the Commission for Health Improvement's report in 2001 was to lift the morale of the staff off the floor. The morale was so low partly because of management failings, but also because the star rating system gave a black mark against that trust; an unfounded black mark, in some ways.
 The more recent example concerns finance. There has been an ongoing dispute between the acute trust, Epsom and St Helier NHS Trust, and one of the commissioning primary care trusts, the East Elmbridge and Mid Surrey primary care trust, over a sum of £2.1 million that the acute trust argues that it is owed by the PCT. The matter was eventually referred to arbitration, the outcome being that the trust will get about one third of the amount back. 
 The acute trust already has a substantial deficit—this is the point about performance rating that is relevant to this amendment—that currently within the criteria for performance management would not cause it to lose a star. The problem now is that because it is no longer going to get all of the £2.1 million from the East Elmbridge and Mid Surrey primary care trust, it suddenly finds itself in a situation where, through no fault of its own, but because of an arbitration process, it will inherit from that PCT an increased deficit; a deficit that is sufficient to lose it one of its stars. 
 Through no fault of its own, and because of the way the criteria for performance rating work at the moment—they are set by the Department—my local acute trust could, later this year, find itself losing a star. That would send a signal to my constituents, to patients and to staff that would be bad for morale and bad for the reputation of that trust. However, it has nothing to do with the clinical efficacy of its work or of its performance in terms of the health care it provides. 
 That is why it is important to have a system of performance rating that is at the behest and design of the Commission. It is part of this process of independence, and it is an essential part of how the Commission should discharge its responsibilities in respect of measuring performance. It would give confidence to my constituents and to the public at large, as well as to staff working in the national health service. That confidence is sadly lacking because of the perceived political nature of the performance management system that operates, which is 
 increasingly being documented in evidence by bodies such as the Audit Commission. I look forward to the Under-Secretary's response to those concerns.

Andrew Murrison: I should like to know what the Under-Secretary envisages his performance ratings comprising. In clause 41, we learn that those ratings are to be set by the Secretary of State, and that would be an opportunity for him to revise the current star rating system. I assume that the wording ''performance rating'' reflects a change that he intends to make to the way in which hospitals are assessed, to get over some of the problems that the star rating system has introduced.
 I was interested to hear about the experience of other hon. Members, particularly relating to Epsom and St Helier NHS trust. The Bath Royal United Hospital NHS Trust serves the bulk of my constituents, and the situation there is, in many respects, even worse. It is very difficult for my constituents to see what benefit the star rating system has brought to them, particularly those who work in the hospital and struggle to understand why the star rating system should be there at all. It has served simply to demoralise the people who work in the hospital.

Chris Grayling: Is my hon. Friend aware that one consequence of the low star ratings in Bath and Bristol is that the area becomes a matter for jocularity? The Under-Secretary may not know that one of his officials was recently quoted as having said—off the record—''I always drive very carefully when I drive through that area.'' Does he agree that that kind of anecdotal consequence of zero ratings does no favours to the health service?

Andrew Murrison: My hon. Friend hits the nail on the head. The Dr. Foster software openly and fulsomely praises the Royal United hospital in Bath. It is an excellent hospital.

Adrian Bailey: I understand that point, but there are two sides to the star rating system. Last year, I was having an operation in Sandwell general hospital when the star ratings were announced. The reaction of the staff to the award of three stars certainly presents a totally different perspective of the system to that described by the hon. Member for Westbury.

Andrew Murrison: I am pleased for the hospital concerned; that plays off the demoralisation that a low star rating causes for those hospitals for which it is completely unwarranted. I merely bring up the example of the Royal United hospital in Bath to demonstrate that point. I am sorry that officials made facetious remarks about not wanting to get into difficulties when driving past Bath. They have nothing to fear from that hospital, which is clinically excellent and yet has ''nul points'' under the star rating scheme. That is extraordinary and perhaps distorts clinical priorities in a wholly undesirable way.
 I hope that the new wording—the performance rating—on which I would like to probe the Under-Secretary reflects the fact that he agrees, that he understands that the star rating system does a 
 disservice to the NHS, particularly to hospitals such as the Royal United hospital in Bath and the Epsom and St. Helier hospitals and that he is minded to revise it. We did not get far in discussing clause 41 in trying to clarify these standards. This might be an opportunity for the Under-Secretary to do that.

David Lammy: The hon. Member for Epsom and Ewell's contribution on performance and ratings was confusing. He shifted and changed his position several times, whereas my hon. Friend the Member for West Bromwich, West provided an excellent contribution to the debate. The Committee will be aware that the hon. Gentleman seeks to ensure that the NHS has no performance indicators at all; he is against them in principle. The previous Government, who had 18 years to drive up performance in the NHS, chose not to do so, because they did not believe in the NHS. We know that the Conservatives chose to undermine it. They do not believe in the NHS now, which is why they want 20 per cent. cuts. They did not believe in it previously, which is why there were no performance indicators.
 Subsequently, in debating the types of performance indicators, they shift their ground slightly towards the Liberal Democrat stance and start talking about particular hospitals; if their local hospitals have three-star ratings, they go quiet. 
 The Government have been clear that we will continue to debate and have a dialogue with the new CHAI about what the performance indicators are. However, in principle, we believe in and stand by the performance star ratings. We stand by that effort to drive up the quality of health care across the board, because we do not believe in the patchy postcode lottery that we inherited when we came into power in 1997.

Chris Grayling: In case the Under-Secretary is still confused, let me set out our policy simply. It is the policy of Conservative Members to scrap the star rating system.

David Lammy: Perhaps the hon. Gentleman should have made his amendment clearer. Talk about being confused! His amendment as drafted removes the performance rating. [Interruption.] The amendment says, ''performance''. There is nothing about star ratings. It takes out the indicators with which we are attempting to drive up standards in the NHS.

Paul Burstow: Everyone wants to drive up quality and standards in the NHS. However, does the Under-Secretary not share the concern that the current criteria used to set star ratings should take financial deficits into account? The circumstances I described could result in a trust losing a star unfairly, when its performance rating was nothing to do with its direct financial management.

David Lammy: No. The hon. Gentleman knows that there is a range of indicators by which trusts are assessed for star rating. Those indicators can be patient, capacity, capability and clinical focus. We will always be able to discuss with a particular trust an indicator against which it has not performed well. It is disingenuous to pick out a particular indicator because the hon. Gentleman is not happy with it.

Chris Grayling: Will the Under-Secretary give way?

David Lammy: No, I shall make some progress.
 This side of the House is proud of the NHS star ratings. We know that they provide a robust assessment of the performance of individual NHS trusts across a broad range of measures. We are not suggesting that the system is perfect, given that we introduced it in 2001, but it is improving all the time. We introduced the system because we believe in the NHS and want to drive up quality and patient experience across the board. So often in contributions from the Opposition on the subject, patients are not even mentioned once.

Paul Burstow: The Under-Secretary makes a key point about the need to factor in patient experience. Why have the Government not yet published the results of the first patient survey in the NHS? Should that information not be in the public domain?

David Lammy: We will publish it in due course, as we determine. Patients will be pleased about patient focus in considering the performance indicators. The hon. Member for Epsom and Ewell poured scorn on the figures for the four-hour A and E admission waits. He presumably wants to return to the long trolley waits of anything up to nine hours that people experienced when the Conservatives were in power. He wants to go back to those waits that we have sought to tackle.
 The hon. Gentleman will pour scorn on the issues of better hospital food, cancelled operations and others about which patients care, including privacy and dignity. He would scrap all the indicators. His constituents would have to wait longer in A and E and would have no privacy or dignity because the NHS would not measure those factors, nor would it have any means of judging better hospital food. Why? Because the hon. Gentleman for Epsom and Ewell knows best. However, when he was challenged by my hon. Friend, the Member for West Bromwich, West, he fumbled it. He could not describe a better way of improving performance in the NHS.

Adrian Bailey: Opposition Members have put a sinister interpretation on the existing performance rating system. Does my hon. Friend the Under-Secretary not agree that scrapping this form of evaluation, allied to the proposed 20 per cent. cut, could be interpreted as a way of ensuring that people do not realise the full impact of policies towards health care?

David Lammy: Absolutely. That frankly sinister combination of cuts across the board in the NHS—

Simon Burns: Will the Under-Secretary give way?

David Lammy: No, I will not.
 The Opposition suggest cuts across the board in the NHS along with no performance indicators. That would see the NHS undermined because the NHS has never been safe in the hands of the Conservatives. Performance ratings are only one criterion; there are others for judging our hospitals. People know that.

Roger Casale: My hon. Friend is absolutely right to unmask the lack of conviction on the part of the Conservative party in terms of driving
 up standards in the national health service. They criticise the indicators, the mechanism for raising standards, but we should remember that, in 18 years of Tory government, there were no national standards at all. We had no standards before; now there is criticism of the mechanism to raise standards. When my hon. Friend and his colleagues achieve the targets that we have set through those standards and indicators, I am sure that he will join with me in calling on the Opposition to finally acknowledge that national standards are important, and that we must all work hard to improve them as he has set out.

David Lammy: My hon. Friend is correct. He has been supportive of the Epsom and St. Helier NHS Trust, which was referred to previously. I want to put on record the excellent work of its chief executive, John de Braux, of Jennifer Denning and of the trust's chair, Michael Doherty. I am sure that my hon. Friend will have noted their work in turning the trust around. They did so because they had the indicators to ensure that there was the correct management and the right procedures to drive up performance.

Chris Grayling: On a point of order, Mr. Atkinson. One does not want people to be misrepresented. The Under-Secretary referred to Jennifer Denning, the trust's former chair who left shortly after the publication of the CHAI report. The trust is now under the chairmanship of Mr. Doherty. Mr. Doherty should take the credit for much of the work that has been done.

Peter Atkinson: That is a matter for debate, and not for the Chair.

David Lammy: It is clear that the new management team has driven performance up in that trust, and they did it because of the performance indicators. Those indicators assisted them and led to an improvement from zero to two stars for the trust, on which the hon. Member for Epsom and Ewell poured scorn earlier.
 Of course CHAI will publish performance data on NHS care independently under clause 50. NHS bodies are excluded from doing so under section 44 of the Audit Commission Act 1998. 
 Dealing with the issue raised by the hon. Member for Westbury on amendment No. 399, standards, rather than performance ratings, are set by the Secretary of State under clause 41. I cannot say what those standards will be next year, or in two or three years. He ought to make a distinction between standards and the performance indicators, which are the determinant of those standards.

Andrew Murrison: I was seeking some clarity on what those standards will be. We have had standards over the past six years, but they have led to a considerable distortion in clinical priorities, leaving us in a very bad position. I do not want specifics from the Under-Secretary; I just want a general example of the nature of the standards. Surely he can give us that.

Peter Atkinson: Order. We covered that matter in earlier debates, and we are now talking about performance rating.

David Lammy: The Government's star ratings include a performance indicator on data quality, because the
 Government recognise that that is an important aspect. Different trusts can get the same star rating when they perform better or worse on various indicators, because the star rating is one summary score of performance, based on 37 different performance measures. The hon. Member for Epsom and Ewell knows that. He is, to some extent, playing games with the 37 indicators in being selective about the ones he refers to. The general public—who may take an interest in the matter—know that, and that performance indicators are driving up standards.
 I remind the hon. Gentleman that those standards are set against a clinical focus, a patient focus, a capacity focus and a capability focus that may reflect the infrastructure or IT provision in a particular trust. When he seeks, in the amendment, to do away with performance star ratings, he is doing away with measures and indicators that make NHS hospitals better. He is doing away with patient focus indicators on cancelled operations and day-case booking; with the accident and emergency four-hour target that has been set for the end of 2004; and with the number of in-patients who are waiting longer than the set standard. He is not offering any alternative.

Chris Grayling: I shall give the Under-Secretary credit; he is trying hard, but he is missing the point completely. I have not argued for the scrapping of indicators. He does not seem to understand that there is a fundamental difference between a collection of performance indicators and a star rating system. We want the star rating system to be scrapped.
 Health service managers are being forced to chase artificial targets, because those targets represent a piece of the jigsaw in securing a zero, one-star, two-star or three-star rating. Whether or not those concerned meet that four-hour accident and emergency waiting-time target in a particular week; whether or not they have the right budgetary position at the end of year; and whether or not they meet the Government's waiting-time targets—and so forth—will dictate whether they end up with a zero, one, two or three-star rating. 
 That in turn will dictate whether those involved can recruit the best people; whether they can attract and retain the people whom they need to deliver services; whether they receive support from the community; and whether their image in the community is the right one. As my hon. Friend the Member for Westbury said, it is creating a structure that does not truly reflect the quality of care provided in hospitals. That failing is what we want to see removed. 
 I want to be clear that the amendment is about the ratings. The Under-Secretary said that the amendment was confused. I do not understand how that could be the case. The amendment clearly proposes to delete line 3 on page 18, thus deleting the words 
''and must award a performance rating to each such body.''
 The clause would, therefore, simply read: 
''In each financial year the CHAI must conduct a review of the provision of health care by and for—
(a) each English NHS body, other than an NHS foundation trust, and
(b) each cross-border SHA.''
 CHAI does not have to award a performance rating to each body. The performance rating system does not work. It is discredited in the eyes of the medical profession, and it distorts clinical priorities. It does not do the right job. 
 The Under-Secretary knew a little about the Epsom and St. Helier situation. He was correct to pay tribute to the work of John de Braux and his management team and, more recently, the work of Michael Doherty when he became chairman of the trust. They have improved matters in what was a difficult situation. Ironically, they are now concerned that they may lose staff at a time when there is no evidence that the clinical performance of the trust has gone down. 
 It is also ironic that they find themselves in a difficult financial position. They are having difficulty in balancing their books because some of the funding streams that they received in previous years are not coming through at present. Financial issues outside their control will dictate whether they retain two stars or end up with one star at the end of the year. What the Under-Secretary did not say, of course, is that there is a likelihood that one or both of the hospitals may disappear, to be replaced, possibly, by a new, smaller hospital. In the next couple of years, the people of Epsom or St Helier may lose their hospital.

Roger Casale: I do not want to get into personalities, but the hon. Gentleman said that the improvements were the result of what had happened under the chairmanship of Michael Doherty. Jennifer Denning, the previous chairman, has been mentioned. Does the hon. Gentleman not agree that this is an example of how little he understands about the process of improvement in the NHS? It was Jennifer Denning who put the strategy in place for turning the performance of the trust around. Michael Doherty has continued that work, part of which was to employ John de Braux as the new chief executive. The processes have changed—

Peter Atkinson: Order. Not only is that a long intervention, we are in danger of getting into an Adjournment debate about this particular hospital.

Chris Grayling: It would be unfair to get into a debate about Jennifer Denning's work. Jennifer Denning was a committed public servant, as indeed was John de Braux's predecessor. People in the NHS at all levels, including managers and clinicians, do the best that they can for patients. Sometimes they succeed and sometimes they do not. We want to create a system that will work with the health care professionals to try to help them to deliver quality care to the patients, rather than one that works against them and ties them up in unnecessary red tape, distorting clinical priorities.
 You will know from your constituency, Mr. Atkinson, the reality of the situation. Opposition Members know it from their constituencies, and I suspect—although I do not expect them to admit it in the Committee—that Labour Members also know it. That reality is that 
 the pinnacle of the target structure—the star rating system, and the management effort that goes into working towards the star ratings—is distorting clinical work in the health service; that is wrong.

David Lammy: The management effort is driving up performance across the NHS. The hon. Gentleman mentioned red tape and bureaucracy, but will he explain how much red tape and bureaucracy will be needed to introduce the passport system that his party is proposing, which will take people out of the NHS?

Peter Atkinson: Order. That has nothing to do with the amendment.

Chris Grayling: Tempting though it is to respond to that—we could have an entertaining debate about why the patient passport is a much smarter way of managing health care—I will not allow myself to go down that road.
 To conclude my remarks, I return to the Audit Commission's report. I have one final piece of evidence regarding the flaws in the current performance-related system. Page 30 of the report states: 
''There is a statistically significant relationship between performance and managerial adequacy. The number of DH stars awarded is only weakly related to either.''
 Along with the case studies that I outlined earlier and the fears, anxieties and complaints of health service professionals across the country, that provides a more than adequate reason to say that the current performance rating system is wrong. The system does not work, creates divisiveness where none is needed and should be scrapped. 
 If it were not my intention to return to this issue at a later stage, Mr. Atkinson, I would seek a division on the amendment. However, I hope that we can return to this on Report and in another place, so for now I beg to ask leave to withdraw the amendment.

Hon. Members: No.
 Amendment negatived.

David Lammy: I beg to move amendment No. 288, in
clause 51, page 18, line 4, leave out 'this section' and insert 'subsection (1)'.
 The amendment corrects a drafting error in the Bill to make clear the requirement on CHAI to issue annual performance ratings on the health care provided by or for English NHS bodies and cross-border strategic health authorities, subject to criteria specified and approved by the Secretary of State. 
 The Government are committed to high national standards and full accountability in public services through annual reviews, through which the CHAI will ensure that patients and the public are made aware of the quality of services being provided locally and nationally in the NHS. A performance rating system provides a simple indicator of the level of performance of NHS bodies when providing health care services in any one year, and makes it easier for the public to make informed judgments about the quality of the services being offered to them by local service providers. It also serves to highlight poor performers so that, where necessary, the Secretary of State and the 
 foundation trust regulator may intervene to ensure that standards are being maintained. 
 Clause 51 as drafted already allows for CHAI to determine its own criteria, but Ministers need to be able to approve such criteria. 
 Amendment agreed to.

Chris Grayling: I beg to move amendment No. 31, in
clause 51, page 18, line 5, leave out 
 'and approved by the Secretary of State'.

Peter Atkinson: With this it will be convenient to discuss the following:
 Amendment No. 360, in 
clause 51, page 18, line 6, leave out 'and approved'.

Chris Grayling: I shall not detain the Committee for as long on this amendment as it was detained previously, as some of the issues were touched upon in the previous debate. In tabling this amendment, we return to the principle that has guided us throughout the Bill; the belief that there will not be genuine improvements in the health service until the number of clinicians who do the work and who treat patients are cut free from the overweening control of the centre of the Government.
 The Department of Health has begun to acknowledge that and, in preparation for this Bill, the Secretary of State talked about removing the powers of direction. On 22 May he said: 
''Giving local organisations greater freedom helps promote innovation and encourages enterprise . . . We plan to do this firstly by removing the Secretary of State's powers of direction over NHS Foundation Trusts. Instead of being line managed by the Department of Health, they will be held to account through agreements and cash for performance contracts they negotiate with PCTs and other commissioners as well as through independent inspection''.
 Independent inspection is what we are looking for; no more, no less. We require an independent body that is not subject to the diktat of political masters; one that is free from the need to deliver press releases at the right time of the year; one that is free from the need to have bullet points that can be used in political speeches to tell us how much the national health service is improving; and one that is bilaterally able to give a dispassionate and objective assessment of the way in which the health service is working. 
 Until that comes into effect, the addition of the words 
''and approved by the Secretary of State''
 is wholly inappropriate. What would that mean in reality? When CHAI is established later this year, it will set out the criteria it will use to assess the performance and quality of health care delivered by NHS bodies. Having done that, it will have to send the document to the Secretary of State for approval. What will happen if the Secretary of State does not like it? 
 Let us suppose that the leadership team of CHAI were to agree with Opposition Members that the star rating system did not work, was inappropriate, did not paint a true portrait of the way in which our hospitals, clinicians and ambulance trusts perform, was wrong and should be scrapped. Do we believe that CHAI 
 would be free to do that? Do we believe that the Secretary of State would say, ''Fine, get rid of it. Do not worry about that, you are in charge now.''? 
 I do not believe that for a moment. I do not believe that CHAI will be free to set up an entirely new approach to health care inspection if it believes that that is the right thing to do. I do not believe that it will be free to change the priorities, or to change the way in which performance is measured, or to strengthen the quality dimension of inspection.

John Hutton: It is in the Bill.

Chris Grayling: The Minister is muttering to himself that it is in the Bill.

John Hutton: It is for Parliament to decide on those matters.

Chris Grayling: If it is for Parliament to decide those matters, I am sure that the Minister would be happy to accept the amendment and we can move straight on. I should be delighted to have either the Minister or the Under-Secretary intervene. If the Minister of State is right that it is for Parliament to decide, let him intervene; the amendments can be accepted and we can move on.
 I notice that Ministers are not doing that, which suggests that they want the Secretary of State's power of approval to be retained. What would that mean if CHAI were to agree with Opposition Members that not enough was being done to measure whether the health service was making people better or to assess the quality of health care provided? We should remember what the Under-Secretary said about an hour ago; he said that it was not the job of CHAI to measure the quality of clinical work, or to measure whether or not a doctor was treating people well or badly. That is complete nonsense. What is the point of having a health care inspectorate if it is not there, in part, to measure whether or not doctors are treating people well or badly?

David Lammy: For the record, I made a distinction between the ethical nature of a clinician's work and the right role of the General Medical Council—the hon. Gentleman is well aware of that—and the role of the inspectorate.

Chris Grayling: Let us be clear. I am grateful to the Under-Secretary for the correction, if that is the case. Is he saying that it is CHAI's job to go into a hospital and judge whether a doctor or a clinical team is delivering a good service or not?

David Lammy: The Government would expect CHAI to work with the General Medical Council, as it would with the royal colleges. That duty of co-operation is in the Bill, as the hon. Gentleman should know.

Chris Grayling: I am not sure that that truly answered my question. The reason it is important that this should happen was highlighted in the comments made by my hon. Friend the Member for Westbury in the previous debate. His hospital, the Royal United hospital in Bath, suffers under the current system, which was set up by the Secretary of State. However, it would be entirely appropriate for
 CHAI to judge the clinical work done by the doctors who serve patients in that area, which, as my hon. Friend rightly says, is of far higher quality than is currently apparent.
 CHAI, in its new structure, might say, ''The current system does not allow us to measure the quality of clinical work being done by the doctors in that hospital, and that should not be the case, so we want to change the balance of what we do and we want to measure health outcomes much more clearly than we do at present.''

Andrew Murrison: I have a lot of sympathy for Ministers, because measuring health outcomes is devilishly difficult. In their desperation to come up with the star rating system, the Government have fixed on indicators that are easy to measure. Nobody is underplaying the difficulty of measuring clinical outcomes; they are notoriously difficult to assess. However, that is not an excuse for not trying to base the star rating system on those difficult clinical outcomes.

Peter Atkinson: Order. Before the hon. Gentleman replies to that intervention, I remind the Committee that we not debating the standards. We are debating whether the Secretary of State should approve them.

Chris Grayling: What this amendment seeks to achieve is that CHAI should have freedom from a political yes or no from the Secretary of State and the freedom to decide to change the balance of the indicators that it measures. Members will recall from a previous debate that we said that we did not want an overall star rating system. CHAI should have the freedom to put information into the public arena, in whatever shape or form it deems appropriate, about the quality of health care provided by hospitals, ambulance trusts, primary care trusts and other NHS organisations. It should be able to use whatever means it chooses to balance process, financial management and health care outcomes.
 My hon. Friend the Member for Westbury is right; it is difficult to measure health care outcomes, but that is no reason for not attempting to do so. CHAI does not have the freedom to do that, unlocked from political control. If CHAI says something that Ministers do not like, according to this section of the Bill Ministers have the power to say, ''No, you cannot do that.'' That is where we part company from the Government. We do not believe that the Secretary of State should have the power to say that to the independent inspectorate. 
 The word ''independent'' has been writ large in the Secretary of State's comments. Independent inspection is not inspection carried out according to a list of criteria that must be submitted to, approved by and, if controversial, changed by the Government. That is the implication if the Secretary of State must approve criteria. He will have the power to say no and the power to direct CHAI according to what he wants. 
 This part of the Bill does not provide for the establishment of a truly independent inspectorate. We, and other Members, have sought to challenge this subsection and others in the Bill. This subsection applies a number of constraints and a number of ties 
 to the inspectorate. The inspectorate is free, but only as free as the Government want it to be. That is not acceptable. It is important that we do not give the Secretary of State the power to dictate, and this subsection seeks to do just that. He should not have that power.

Roger Casale: The hon. Gentleman told the Committee that he had a commitment to raising standards in the national health service. My hon. Friend the Under-Secretary and other members of the Committee have questioned that commitment. But taking that commitment, and that of his colleagues, as one will, we have seen that he has a distorted view of how improvement is brought about and how changes in the national health service are made.
 When the Conservatives were in office, they did not think that it was necessary to have any national standards to bring about improvements to the health service. We have heard in previous debates on previous amendments that they do not want a star rating system to impose standards. Now we hear that the criteria by which we are to regulate improving standards in the health service should be outwith the powers of the Secretary of State. 
 The hon. Member for Epsom and Ewell has demonstrated that he fails to understand that when it comes to improving the standard of care in the health service, the process of change does not start at the centre. It is not the result of the stretching out of the long arm of the Secretary of State. It is a bottom-up process that starts in organisations with a commitment to change and improvement on the part of clinicians and everyone else who works there. 
 The Secretary of State's role is to set the conditions by which such change can take place and be sustained; to set out the general direction of travel; to identify best practice according to set criteria; and to spread that best practice around the health service. That is why it is important that we reject the amendment and leave the setting of criteria to the Secretary of State. 
 We want to see improvements and an increase in quality. However, I do not want to see improvements in one hospital only; I want to see more equality in the health service and in standards of care throughout the country. We must not leave it to chance and the occasional inspection—as the hon. Gentleman for Epsom and Ewell seems to suggest—to raise the standard of care in one particular hospital. We must have clear criteria, standards and mechanisms by which we get not only improvements, but a higher level of equality throughout the country. 
 The Epsom and St Helier NHS Trust has been mentioned in the debate on this amendment and on previous occasions in this Committee, and it illustrates the point that I am making, which is that the hon. Gentleman for Epsom and Ewell understands very little about how the process of change comes about. It is a bottom-up process; one that, in this case, started with consultation and engagement with everybody working in St Helier hospital. If the hon. Gentleman knew that, he would understand why it is important to have clear criteria, a clear direction of travel, clear 
 benchmarking along the way and clear rewards to show that the process of change is happening.

Chris Grayling: As politicians—with a few notable exceptions—most of our knowledge does not come from direct experience of the health service. I will pray in aid the former chief executive of the NHS Confederation, who said on 11 July 2001:
''Labour has embarked on measures to tighten the grip of central control of the service . . . which has had the unintended consequence of disempowering many at the front line.''
 Was he wrong?

Roger Casale: I can understand why the hon. Gentleman wants to start praying in aid various people, but he will need to pray in aid rather more people than that to defend a position that is not particularly robust.
 The Epsom and St Helier NHS Trust has been prayed in aid on many occasions during the Committee's proceedings by the hon. Member for Epsom and Ewell. I would submit that if he had spoken to nurses, doctors, clinicians and managers working there, as I have done, he would know that they are saying that the process of change, of which this measure is a part, and which this Government has put in place, has enabled them to transform the quality of service in the hospital where they work. 
 I do not know any nurses, doctors or hospital managers who say that they want to work in a hospital that is substandard. It is not only patients who want improvements; it is everyone who works in the health service. They want a Government who care passionately about improving standards and are prepared to work with them so that the process of change can take place. 
 That process of change must be benchmarked. We, as a Government, have a duty to set the overall direction of travel. However, it should not be forgotten that the process of change must start with the people who work in the health service. That has been the situation at the Epsom and St Helier NHS Trust, and that is why we can learn so much from that case. I draw the opposite conclusions from the changes at the Epsom and St Helier NHS Trust to those drawn by the hon. Member for Epsom and Ewell. For that reason, we should reject his amendment.

Patsy Calton: I support the central point made by the hon. Member for Epsom and Ewell, which is that the issue is the independence of CHAI. The relationship between CHAI and the Secretary of State will be important. Concerns have been raised about the Secretary of State dictating to CHAI, which would result in it not being regarded as an independent body.
 The Conservative amendment and ours are different. The Conservative amendment seeks to remove the requirement for the approval of the Secretary of State. Ours is softer and indicates that while the approval of the Secretary of State is not necessary, he still has a role to play. I hope that our amendment is perhaps somewhat closer to what the Government intend, which is to have an independent body that is recognised as such. The problem with the Bill as it stands is that CHAI will be regarded simply 
 as the instrument of the Secretary of State because the Secretary of State can dictate all the criteria. 
 As we have seen so often—as with the star rating system that has been much talked about this morning—the selection of the criteria has a profound impact on the outcomes for particular hospitals and particular areas of the health service.

Simon Burns: I understand that the hon. Lady wants the Secretary of State to be less involved. In a paradoxical way, does not her amendment increase his involvement? The Government do not intend that, from time to time, the Secretary of State will devise the reference to criteria and the exercising of functions; rather, he will simply approve what CHAI comes up with. We seek to remove the Secretary of State from such approval. However, the hon. Lady's amendment suggests that the Secretary of State will work with CHAI in devising proposals. That would give him more power in an area where the Bill gives him no power, other than that of approval.

Patsy Calton: I have tried hard to follow that argument, but I do not see that the amendment will give the Secretary of State more power. It will give CHAI and the Secretary of State an opportunity to work in a looser or more formal partnership, as they
 choose. The point is that they would be regarded as equal partners rather than one being beholden to the other. If CHAI were beholden to the Secretary of State for anything that it might do, effectively, it would make no decisions for itself. As it stands, that wording causes me great concern.

Roger Casale: If the Secretary of State were not to approve the criteria, by what process would the criteria be drawn up and approved? Will that be completely internal to CHAI, and how will it work?

Patsy Calton: I confess that the detail would be difficult and would depend on the relationships. My point is that there is a difference between CHAI being completely under the power of the Secretary of State and a recognition that the two should work together. That process would depend on the individuals concerned. As long as the Bill allows the Secretary of State to reject completely any proposal from CHAI, effectively it has no power at all.

David Lammy: I want to make it clear that CHAI will develop and propose criteria for performance ratings—
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.